Donald W. Hawthorne
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Don Hawthorne’s practice focuses on cutting–edge and big ticket litigation, often in the financial services industry and in litigation with international parties. He has been prominently engaged in litigation related to the US 2007-08 financial crisis, assisting clients in recovering hundreds of millions of dollars for RMBS investors and in trustee direction proceedings. Don’s team is experienced in litigating a wide range of issues arising from distressed securitized debt, and is often adverse to major commercial banks. He is a go-to counsel for matters concerning complex financial instruments, including serving as the expert witness in jury and bench trials in 2019 and 2020 for the Rescap trustee, providing testimony about the rights of debt noteholders that has led to the recovery of billions of dollars for the Rescap estate. He is currently engaged in potential litigation arising from the COVID downturn concerning contract non-performance and distressed opportunities, including in securitized debt and commercial real estate.

Don frequently represents foreign parties in US litigation. He has deep connections with Japanese clients, travels to Japan regularly, and also handles matters concerning offshore jurisdictions.

Don’s practice encompasses the full range of complex contractual and securities litigation. Don represents parties before the SEC and has led many internal investigations. Much of his practice concerns litigation over the significant financial consequences of such basic contract terms as “indemnification,” “warranty,” “royalty,” and “material adverse change” — terms that contract parties often find are far more financially significant than was anticipated at the time of drafting.

Professional Activities

  • American Bar Association
  • Association of the Bar of the City of New York

Experience

Financial Services Litigation and Complex Commercial Litigation

  • Lead counsel for monoline insurer Syncora Guarantee Inc. in its suit against Countrywide Home Loans for fraud and breach of contract arising from financial insurance provided for over $6 billion in residential mortgage-backed securities (“RMBS”). Obtained $375 million dollar settlement.
  • Lead counsel for multiple hedge funds and institutional investors in RMBS litigation including Article 77 proceedings and claims against Trustees and Servicers
  • Lead counsel for financial industry service provifer in defense of multiple indemnification claims brought by major money center banks
  • Expert witness on the reasonableness of Rescap’s RMBS settlements in action by RMBS trustee to recover $9 billion in indemnification suits. Testimony at jury trial led to directed verdict on reasonableness of settlements.
  • Counsel to multiple monoline insurers and association of financial guaranty insurers on pending suits and potential claims related to RMBS and other securitized asset classes.
  • Lead counsel for investment bank in successful defense of securities claims arising from its role as auction manager for auction rate securities (“ARS”). Obtained dismissal on the pleadings.
  • Lead counsel for investment bank in defense of antitrust class action alleging conspiracy among auction managers for auction rate securities (“ARS”). Obtained dismissal on the pleadings.
  • Lead counsel for private equity investor in successful defense of $108 million short swing profit derivative claim. Obtained dismissal on the pleadings.
  • Lead counsel for private equity investor in successful defense of breach of fiduciary duty action challenging $4.5B acquisition and related appraisal proceeding in Delaware Chancery Court.
  • Lead counsel for insurer in internal and SEC investigation of insurer’s sales of “finite insurance” policies.
  • Lead counsel for mutual fund in internal investigation of allegations of “market timing.”
  • Lead counsel for private equity investor in successful motion to dismiss Section 10(b) and controlling person securities class action claims against private equity investor and its appointed directors. Obtained dismissal on the pleadings.

Antitrust Litigation and Counseling

  • Lead counsel for investment bank in defense of antitrust class action alleging conspiracy among auction managers for auction rate securities (“ARS”). Responsible for portion of joint defense brief addressing “Billing” preclusion that was basis for dismissal on the pleadings.
  • Lead counsel for defendant manufacturer of copying machines in class action suit involving “Kodak” claims alleging tying and monopolization of parts and services after-markets. Obtained dismissal on the pleadings.
  • Representation of major insurer in internal and New York Attorney General’s investigation of bid-rigging allegations relating to insurer’s brokerage compensation arrangements. Lead attorney coordinating response to related state regulatory investigations and private class action litigation.
  • Lead antitrust counsel for Domtar in its $6 billion combination with Weyerhaeuser’s fine paper business. Merger of second and third largest competitors in homogenous products industry resulted in DOJ resolution within initial waiting period with no divestitures.
  • Individual representation of US and Asian executives in DOJ criminal investigations of alleged international air freight and passenger cartels.
  • Successful representations of parties in billion dollar mergers in commodity, differentiated product, software and distribution industries before the DOJ and FTC.
  • Counseling founders of DVD standard on antitrust issues relating to standard-setting, including obtaining business review letter approving DVD patent pool licensing arrangements and drafting DVD patent licensing agreements.

International Disputes and Offshore Litigation

  • Lead counsel for insurer in multi-jurisdictional coverage and collection dispute involving insolvency proceedings, contempt actions, corporate governance issues, and claims of sovereign immunity in federal court, Delaware Chancery Court, and off-shore jurisdictions. Obtained dismissal of all claims against insurer. Pursuing fee claims and sanctions against plaintiffs.
  • Lead counsel for private equity investor seeking to hold parent Austrian bank liable for payment of arbitral award obtained against Russian subsidiary through litigation in US, European and off-shore jurisdictions.
  • Representation of Japanese corporation in dispute with American joint venture partner over operations in China and India involving US, Japanese and Indian jurisdictions.
  • Successful defense and settlement of multi-million dollar construction delay claim against architect of major convention center construction project.
  • Successful resolution of litigation concerning business interruption coverage payments to principal World Trade Center retail leaseholder.

Thought Leadership

Events

Seminars & Classes

  • Don has served as an Adjunct Associate Professor of Law at the Benjamin N. Cardozo School of Law, where for many years he taught courses on the regulation of electronic media covering legal issues concerning broadcast and cable media, the Internet and telephony.

Education

  • JD – Yale Law School (1991)
  • PhD – Balliol College, Oxford University (1998) Rhodes Scholarship
  • BA, magna cum laude – Princeton University (1982) Phi Beta Kappa

Admissions

  • New York
  • US Court of Appeals for the First Circuit
  • US Court of Appeals for the Second Circuit
  • US Court of Appeals for the Third Circuit
  • US District Court Eastern District of New York
  • US District Court Southern District of New York